Anthony Gilbert Hicks v Woolworths Group Limited and Woolworths (South Australia) Pty Limited (‘Woolworths’) T/A Woolworths Supermarkets
[2024] FWC 592
•5 MARCH 2024
| [2024] FWC 592 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Anthony Gilbert Hicks
v
Woolworths Group Limited and Woolworths (South Australia) Pty Limited (‘Woolworths’) T/A Woolworths Supermarkets
(C2023/7987)
| COMMISSIONER LIM | PERTH, 5 MARCH 2024 |
Alleged dispute about any matters arising under an enterprise agreement - Application permission to be represented –s.596
Introduction
On 19 December 2023, Mr Anthony Hicks made an application to the Commission pursuant to s 739(6) of the Fair Work Act 2009 (Act) for the Commission to deal with a dispute in accordance with the dispute settlement procedure in the Woolworths Supermarkets Agreement 2018 (Agreement).
Mr Hicks is an employee of Woolworths Group Limited and Woolworths (South Australia) Pty Limited (‘Woolworths’) T/A Woolworths Supermarkets (Woolworths or Respondent). Mr Hicks asserts that there is a dispute between the parties regarding the correct classification for a Woolworths Duty Manager under the General Retail Industry Award 2020 (Award) (Classification Dispute).
Woolworths contends that the Commission does not have the jurisdiction to deal with the Classification Dispute.
On 9 February 2024, I issued a Notice of Listing and Directions to the parties regarding Woolworths’ jurisdictional objection. A hearing to determine Woolworths’ jurisdictional objections has been listed for 28 March 2024.
On 23 February 2024, Woolworths filed submissions in support of them being granted permission to be represented by Ashurst Australia and Matthew Minucci of counsel at hearing. Woolworths filed further supplementary submissions on 27 February 2024. On 29 February 2024, Mr Hicks filed submissions objecting to Woolworths being granted permission to be represented.
Relevant legislation
Pursuant to section 596 of the Act, a person may be represented in a matter before the Commission by a lawyer or paid agent only with permission of the Commission. Section 596 provides as follows:
“596 Representation by lawyers and paid agents
(1)Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or submission to the FWC on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.
(2)The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:
(a)it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or
(b)it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or
(c)it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.
Note: Circumstances in which the FWC might grant permission for a person to be represented by a lawyer or paid agent include the following:
(a)where a person is from a non-English speaking background or has difficulty reading or writing;
(b)where a small business is a party to a matter and has no specialist human resources staff while the other party is represented by an officer or employee of an industrial association or another person with experience in workplace relations advocacy.
(3)The FWC’s permission is not required for a person to be represented by a lawyer or paid agent in making a written submission under Part 2- 3 or 2- 6 (which deal with modern awards and minimum wages).
(4)For the purposes of this section, a person is taken not to be represented by a lawyer or paid agent if the lawyer or paid agent:
(a)is an employee or officer of the person; or
(b)is an employee or officer of:
(i)an organisation; or
(ii)an association of employers that is not registered under the Registered Organisations Act; or
(iii)a peak council; or
(iv)a bargaining representative;
that is representing the person; or
(c)is a bargaining representative.”
Submissions
3.1 Woolworths
Woolworths makes two submissions regarding representation.
Firstly, by virtue of clause 22.2(f) of the Agreement, Woolworths does not need permission to be represented in the proceedings. This is on the basis that under clause 22.2(f) of the Agreement, Woolworths is “entitled to be represented, including by legal representatives, in any proceedings under this clause.
In Shop, Distributive and Allied Employees Association (006N) v Woolworths (South Australia) Pty Ltd & Woolworths Group Ltd (SDA v Woolworths),[1] Commissioner Hampton (as he was then) considered clause 22.2(f) and observed at [12]:
“[12] In that light, the better approach to the issue of representation in this case is that clause 22.2(f) of the Agreement operates to provide a direct right of representation as contended by the parties. Clause 22 of the Agreement expressly contemplates representation of the parties, including by legal representatives, and the matters are one of private arbitration under those terms. Further, s.739(3)7 of the Act supports that approach in this case; albeit that this might require the DRP to be applied as limiting the import of s.596 of the Act as it would appear that the hearing of the disputes is “a matter” before the Commission within the meaning of that provision. I observe that even if my preferred view is not correct, the private character of these proceedings is relevant when assessing issues of efficiency, complexity and fairness contemplated by s.596(2) and any discretion that arises.”
Secondly, Woolworths submits that in any event, the Commission should permit Woolworths to be legally represented pursuant to s 596 of the Act for the following reasons:
Efficiency and complexity (section 596(2)(a))
The initial hearing will involve consideration of complex legal issues in relation to the jurisdiction of the Commission and what can be considered a “dispute” under an enterprise agreement. If the Commission does have jurisdiction to arbitrate, the substantive proceedings will involve contested facts and evidence as to the nature of the Duty Manager position and the appropriate classification under the Award.
Woolworths submits that issues involving proper construction of the terms of an award or agreement are complex and would be conducted more efficiently with the assistance of an external legal representative.[2]
Woolworths further submits that where one party is unrepresented, as is the case in this matter, having the other party represented by a lawyer will assist the Commission in the exercise of its statutory functions, as representation will focus the parties on relevant issues and assist to shorten the proceedings.[3]
A necessary consequence of a lawyer’s paramount duty to the Commission is that a grant of permission to appear may aid the Commission’s inquiry as much as it assists the lawyer’s client.[4]
Fairness between the parties (section 596(2)(b) and (c))
Woolworths is a large employer. However, the mere size of a business is not a decisive consideration in determining a party’s capacity for self-representation.[5]
Woolworths does have internal lawyers and industrial relations professionals. However, they do not have experience in appearing at contested hearings of applications for the Commission to deal with jurisdictional objections of this nature or classification disputes. They also do not regularly conduct advocacy in the Commission.
Woolworths submits that the circumstances of these matters merit the Commission exercising its discretion to permit Woolworths to be legally represented.
3.2 Mr Hicks
Mr Hicks submits that the circumstances of this matter do not satisfy the legislative requirements for permission to be granted by the Commission. Further, that the circumstances do not merit the Commission exercising its discretion to permit Woolworths to be legally represented. Mr Hicks also submits that the Commission should only deal with the issue of representation in relation to the substantive matter if/when the matter proceeds to that stage.[6]
Mr Hicks submits that the explanatory memorandum to the Fair Work Act Bill 2008 states that:
(a)The Commission is intended to operate efficiently and informally.
(b)Persons dealing with the Commission would generally represent themselves.
(c)In many cases, legal or other professional representation should not be necessary for matters before ethe Commission.
(d)In granting permission, the Commission would have regard to considerations of efficiency and fairness rather than merely the convenience and preference of the parties.[7]
Mr Hicks relies on Flick J’s decision in Warrell v Walton,[8] where His Honour stated at [24] – [25]:
(a)A decision to grant or refuse permission for a party to be represented cannot be properly characterised as a mere procedural decision.
(b)It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted.
(c)It is apparent that a party in a matter before the Commission must normally appear on their own behalf.
(d)Even if a request for representation is made, permission may be granted ‘only if’ one or other of the requirements in s 596(2) is satisfied.
(e)The satisfaction of any requirement is the condition precedent to the subsequent exercise of the discretion conferred by s 596(2)(a)
Mr Hicks further contends that the Commission is obligated under s 577 to perform its functions and exercise its powers in a manner that is fair and just. It is hard to see how this can occur when one party is self-represented and the other is represented by counsel. When cross-examining witnesses, for example, the former may have difficulties while the latter will not.
Efficiency and complexity (section 596(2)(a))
Mr Hicks submits that Woolworths have overstated the complexity of the present matter. It does not involve jurisdictional or technical matters that are of a complex nature. The relevant principles of interpretation are well settled and can be easily applied in this matter to determine what constitutes a ‘dispute’ for the purposes of the enterprise agreement. Further, Woolworths has failed to file materials on time while represented, which does not support a conclusion that granting leave to be represented would enable the matter to be dealt with more efficiently.
It is also unlikely that external legal representation will aid the Commission with the efficient conduct of this matter as Woolworths already employ competent in-house legal and industrial representatives. Mr Hicks submits that a key consideration under s 596(2)(a) is the complexity of the subject matter of the proceedings.[9]
Fairness between the parties (section 596(2)(b) and (c))
Woolworths is Australia’s biggest private sector employer. It has a large in-house counsel as well as substantial employee relations and workplace relations team. Mr Hicks submits that these divisions have 163; 67; and 8 employees respectively. Woolworths have significantly understated the capabilities, capacity, experience and effectiveness of their employees. Mr Hicks submits that there are Woolworths employees with advocacy experience who have appeared before the Commission, and Woolworths’ assertion to the contrary is not supported by any evidence.
Whether the Commission should exercise its discretion
Mr Hicks submits that granting Woolworths permission to be represented would be extremely unfair to him.
Mr Hicks is a 20-year-old Woolworths employee. Except for one year of law school, he does not have any legal experience and does not have the significant resources or in-house counsel that Woolworths does.
Whether Woolworths is entitled to be legally represented
Mr Hicks objects to Woolworths’ submission that clause 22.2(f) of the Agreement provides an entitlement to a party to be legally represented.
Mr Hicks submits the following:
(a)Section 595(4) of the Act provides that in dealing with a dispute, the Commission may exercise any powers it has under the relevant subdivision. Section 739(3) restricts this ability in that the Commission must not exercise any powers limited by a relevant dispute resolution term.
(b)Section 596 does not confer the Commission with a power; it imposes a restriction. The purpose of s 596 is to preclude parties from being represented unless permission has been granted by the Commission.
(c)In the alternative, the Commission is not exercising any power by refraining from granting permission to Woolworths. The default position in a Commission matter is that each party is unrepresented. If s 596 does create a power, it is the act of granting permission that results in this power being exercised, not the act of declining to do so.
(d)Woolworths’ reliance on SDA v Woolworths is misconceived, as Commissioner Hampton did not reach a final conclusion on the effect of clause 22.2(f) of the Agreement.
In summary, Mr Hicks submits that Woolworths are not entitled to be legally represented and the Commission must determine their request to be represented in accordance with s 596 of the act.
Consideration
The assessment of whether permission should be granted pursuant to s 596 involves a two-step process. The first step is to consider whether one or more of the criteria in s 596(2) is satisfied. The consideration of this first step ‘involves the making of an evaluative judgment akin to the exercise of a discretion’.[10]
It is only where the first step is satisfied that the second step of the process is enlivened. The second step involves a consideration as to whether in all of the circumstances the Commission should exercise its discretion in favour of the party seeking permission. The satisfaction of any of the requirements prescribed in s 596(2(a) – (c) does not of itself dictate that the discretion is automatically to be exercised in favour of granting permission.[11]
I now turn to consider the matters in s 596(2) in the context of the present case.
The first is whether the grant of permission would enable the matter to be dealt with more efficiently, taking into account its complexity. I do not accept Mr Hicks’ submission that this is a matter that does not involve complexity.
Briefly, the background of this application and matters in dispute can be summarised as follows:
(a)Mr Hicks is an employee in the Woolworths Victoria Park (WVP) store. Mr Hicks has filed an application with the Commission pursuant to the dispute resolution clause in the Agreement and s 739(6) of the Act.
(b)Mr Hicks’ dispute relates to the correct classification for the Duty Manager role under the Award.
(c)Woolworths’ jurisdictional objection to Mr Hicks’ dispute can be summarised as follows:
(i)Mr Hicks’ Classification Dispute is entirely hypothetical, as Woolworths does not employ anyone in the position of Duty Manager. There is also no prospect of any employee being required to work as a Duty Manager in the future.
(ii)The Classification Dispute has no rational connection to Mr Hicks’ personal circumstances, as Mr Hicks has never been employed in the position of Duty Manager and Mr Hicks has never performed higher duties in the position of Duty Manager. Further, Mr Hicks does not have standing to raise a dispute of other employees who may have performed the role of Duty Manager.
I am satisfied that the matter is complex. Both of Woolworths’ jurisdictional objections requires assessment of factual disputes and what significance should be attributed to them. It will also require a determination of what constitutes a ‘dispute’ under the wording of the Agreement.
For completeness, I also do not accept that a matter must be complex to satisfy s 596(2)(a). As stated by the Full Bench in Singh v Metro Trains Melbourne[12] at [13]:
“Ms Singh’s contention that her case was not complex implicitly involved the proposition that a finding of complexity was necessary in order for the criterion in s.596(2)(a) to be satisfied. This is not the case. Certainly, the provision requires the complexity of the matter to be taken into account. That means the consideration of complexity must be treated as a matter of significance in the process of determining whether the criterion is satisfied. But ultimately the issue under s.596(2)(a) is whether the grant of permission would enable the matter to be dealt with more efficiently. There will be circumstances where permission for legal representation may enable a matter to be dealt with more efficiently even though it is not particularly complex; for example, an appeal may be dealt with more efficiently by granting permission to allow the legal representatives who appeared in the matter at first instance to also appear in the appeal. Therefore the characterisation of a matter as not being complex does not itself necessarily mean that the s.596(2)(a) consideration is incapable of satisfaction.” (emphasis added)
I find that the navigation of the factual disputes and the jurisdictional objections in the hearing listed for 28 March 2024 will be dealt with more efficiently with counsel.
In relation to whether it would be unfair not to allow Woolworths representation because it is unable to represent itself effectively, I have had regard to the fact that Woolworths is an extremely large and well-resourced company. Though Woolworths submits that it does not have employees who are equipped to represent them in the matter, there was no probative evidence provided for me to properly accept that submission given that it was contested by Mr Hicks.
I have considered Mr Hicks’ submission that it would be manifestly unfair for Woolworths to be granted leave given their size; resources; and the experience disparity between himself and counsel. This is not something that should not be considered lightly. However, I find that this consideration is balanced by the fact that both counsel and Ashurst Australia are bound by the duty to assist the Commission, whilst Woolworths is arguably not bound by such a duty.
In summary, I am satisfied that granting permission to Woolworths to be represented by counsel will assist in the matter being conducted more efficiently, noting the complexity of the matter. I am also satisfied that the countervailing considerations that may weigh against the grant of leave can be adequately managed. Given these findings, I exercise my discretion to grant leave to Woolworths to be represented at the hearing on 28 March 2024, and any subsequent hearing in this matter.
Given my conclusion with regards to s 596, it is unnecessary for me to consider the effect of clause 22.2(f) of the Agreement.
COMMISSIONER
Hearing on the papers.
[1] [2021] FWC 617.
[2] United Workers' Union v Serco Australia Pty Ltd T/A Serco[2021] FWC 4010;
[3] Applicant v Respondent[2014] FWC 2860 at [20] per Sams DP, citing with approval the decision of the Full Bench in Priestley v Department of Parliamentary Services[2011] FWAFB 5585 at [13] per Watson VP, Sams DP and Asbury C
[4] E. Allen and Ors v Fluor Construction Services Pty Ltd[2014] FWCFB 174 at [48].
[5] TWU v Greyhound Australia Pty Ltd[2015] FWC 2105.
[6] Caruana v Shace Toop Trading Trust [2018] FWC 2231, 10 [52]; Christophers v Deanne Carr Dental Pty Ltd [2014] FWC 791, 4 [15].
[7] Explanatory Memorandum, Fair Work Bill 2008 (Cth) 349 [2291]–[2292], [2296].
[8] (2013) 233 IR 335, 342 [24]–[25].
[9] King v Patrick Projects Pty Ltd[2015] FWCFB 2679, 5 [15].
[10] Asciano Services Pty Ltd v Zak Hadfield [2015] FWCFB 2618 at [19(3)].
[11] Warrell v Fair Work Australia [2013] FCA 291; Asciano Services Pty Ltd v Hadfield[2015] FWCFB 2618 at [19]; Calleri v Swinburne University of Technology[2017] FWCFB 4187 at [36]; Kaur v Hartley Lifecare Incorporation[2020] FWCFB 43.
[12] [2015] FWCFB 3502.
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